Erik Nymansson – summary 2021/22
Parliamentary Ombudsman, supervisory area 2
My area of responsibility includes the general administrative courts, defence, healthcare, education and research, and tax and national registration. This area also includes public procurement and a number of key authorities such as the Financial Supervisory Authority, the Swedish Companies Registration Office and the Swedish Agency for Economic and Regional Growth. In terms of the number of complaints, the Chief Parliamentary Ombudsman’s area of responsibility in supervision is slightly smaller than that of the other ombudsmen, with around 2,000 cases in the last operating year.
The pandemic has shaped the past year in many ways, and this is particularly true in healthcare, my area of responsibility. The number of complaints increased by more than a quarter compared to the previous operating year. Complaints more than doubled compared to the years before the pandemic. I have included in the annual report a large number of decisions that are related to the pandemic in various ways.
One challenge for the Parliamentary Ombudsmen was presented by the 12,000 or so complaints received by the end of 2021 regarding vaccination certificates. Almost without exception, the complaints stated that the introduction of vaccination certificates violated fundamental rights and freedoms. In order to streamline the handling of the many complaints, these were registered in more than ten consolidated cases, as they are known. In the statistics, these complaints have thus resulted in only about ten complaint cases. I decided not to investigate the complaints, partly because I am prevented from examining the government. The complainants were informed of the decision only through its publication on the Parliamentary Ombudsmen’s website.
Stringent demands were made of the organisation to register all these complaints and review them before decisions could be made. The complaints were submitted electronically and were very similar in content. In many ways, the whole thing is similar to the protest lists that are produced to show dissatisfaction with various decisions, and the increase in the number of complaints was reported almost daily in the mass media. I understand that mass protests to the Parliamentary Ombudsmen may have an impact on opinion-forming, and that for some this may have been the main reason why they submitted complaints. But for the Parliamentary Ombudsmen’s activities, this means a heavy administrative burden and that other urgent cases have to be given lower priority. I found then, and find again, reason to express a certain degree of concern about the development, and I hope that the Office of the Parliamentary Ombudsmen will not become a place to show dissatisfaction in this way. Not that it is wrong to send us complaints. On the contrary: that is what we are here for, and this is our priority activity. The problem is the large number of complaints on one and the same issue. It must be borne in mind that the Parliamentary Ombudsmen are engaged in judicial review. For the purposes of this review, it is irrelevant whether 1 complaint or 10,000 complaints are received on the same issue. The decision resulting from the individual complaint or the large number of complaints will be the same.
The Parliamentary Ombudsmen’s efforts to increase legal certainty in society are largely carried out through ex-post control. This inevitably leads to a delay between what the complaint relates to and the decision that results from it. This delay may not always be of such great importance if we emphasise the protection of the individual’s legal certainty that the Parliamentary Ombudsmen’s general quality-enhancing work entails. However, the opposite could be said for complaints arising from the pandemic. This is an single health and social crisis, the worst phase of which we have hopefully passed through. It might be thought that the issues it raised and the circumstances that were then the subject of much concern and discussion have lost their relevance, and that this shows the weakness of ex-post control, which is naturally a little slow. However, I would argue that many of the decisions I have chosen to report on in this annual report have a general validity beyond the pandemic and may serve as guidance in other areas as well, and perhaps in particular in other crises. By way of example, I can refer to a decision in which my predecessor, Chief Parliamentary Ombudsman Elisabeth Rynning, stated that there are no legal grounds for deciding on general restraining orders in voluntary healthcare. In another decision, I noted that by removing the option for digital booking of COVID-19 vaccinations, a region had prioritised its own residents over patients from other regions, thereby failing to meet its obligation under the legislation to offer open healthcare to patients from other regions as well.
We can expect other pandemics to follow the COVID-19 pandemic. Highlighting and addressing pandemic-related complaints provides guidance for such reviews in future. What I have often found in my decisions is that the legislation has not taken into account the challenges following on from a pandemic. I am not alone in having realised this, and the government has set up a number of investigations to review the legislation. This has prompted me to send copies of a number of decisions to the investigation on statutory preparedness for future pandemics. One such example is a decision where the question was whether there were legal grounds for a regiment to isolate conscripts in view of the risk of the spread of COVID-19. Another decision related to a region’s handling of COVID-19 vaccinations among people aged 65 or above. In these decisions, I have had cause to criticise authorities for failing to comply with the rules in force, but at the same time I have raised the question of whether the legislation should not be reviewed and that the fact that the rules are not adapted to a pandemic presents a fundamental flaw. This shows that there is enormous value in the Parliamentary Ombudsman’s complaints handling. The overview that we gain in this way of the problems that people face and that authorities cannot always respond to means that we can provide the legislator with specific examples of cases that the legislation has not taken into account.
A large number of complaints have been received concerning the Swedish Agency for Economic and Regional Growth’s handling of furlough funding. I issued a decision of criticism in relation to the way in which this was handled, which I then referred to in subsequent dismissal decisions when the complaints concerned similar shortcomings. In the decision, the Swedish Agency for Economic and Regional Growth was severely criticised for its delay in submitting appeals to the administrative court. In the decision, I referred to elements such as an opinion on the memorandum entitled Tillfälliga nedstängningar och förbud för att förhindra spridning av sjukdomen covid-19 (Temporary closures and bans to prevent the spread of COVID-19), in which the Parliamentary Ombudsman stressed the importance of the authorities that are tasked with handling various support measures having the knowledge, system solutions and staffing to be able to handle the cases in a prompt and legally secure manner.
The pandemic has highlighted the opportunities that digital services can offer, but also the impact on people who are digitally excluded. In my contacts with ombudsmen in other European countries, I have realised that this is an issue that is being widely discussed these days. In many quarters these problems are perceived to have increased with and after the pandemic as a result of increasing digitalisation. I can also see in my own review that this is a problem that we have in Sweden as well. By way of example, I can cite the handling of testing for COVID-19, where some regions required a mobile bank ID to be able to book a test appointment at all. Another example is a case where the Swedish eHealth Agency prioritised a digital solution for issuing vaccination certificates, which required the individual to have e-ID. I pointed out that by no means all individuals are used to, or trust, digital tools and services, and that some individuals have no opportunity to use e-ID, for example. However, the authorities must be accessible and provide appropriate communication channels for these people as well. In another decision, I criticised the Swedish Companies Registration Office for refusing to accept cash payment for the disclosure of copies of official documents. There may be reason for me to pay particular attention to problems related to digital exclusion in the coming year.
As regards the general administrative courts, I note that they still have problems with excessively long processing times in many respects. A number of cases in recent years show that while the courts have certainly made considerable efforts to redress the balance of cases and reduce their processing times, the problems persist; and have worsened in some cases. This is a very troubling development. This is why I have reason to pay particular attention to the processing times of the administrative courts in the coming year’s inspection activities and elsewhere.